In 1989 at the Fitzgerald Enquiry into corruption in Queensland, Jo Bjelke-Petersen
- then Premier of Queensland for 19 years - was asked to define the doctrine
of the separation of powers in the Westminster system. He could not answer
the question. The Queensland Premier certainly understood power,
but his ignorance of what is usually regarded as one of the most fundamental
tenets of liberal democracy demonstrated not only that he was no student
of the theory of government, but that the democratic process in Queensland
had become precarious.

In fact, the doctrine
is not exemplified in the constitutions of the Australian states. However,
the practice is usually evident, and if the object of separation of powers
is to develop mechanisms to prevent power being overly concentrated in
one arm of government, then state processes do eventually have that effect.

DEFINING
THE DOCTRINE

The doctrine of the
separation of powers divides the institutions of government into three branches:
legislative, executive and judicial: the legislature makes the laws; the
executive put the laws into operation; and the judiciary interprets the
laws. The powers and functions of each are separate and carried out by separate
personnel. No single agency is able to exercise complete authority, each
being interdependent on the other. Power thus divided should prevent absolutism
(as in monarchies or dictatorships where all branches are concentrated in
a single authority) or corruption arising from the opportunities that unchecked
power offers. The doctrine can be extended to enable the three branches
to act as checks and balances on each other. Each branchs independence
helps keep the others from exceeding their power, thus ensuring the rule
of law and protecting individual rights.

Obviously under the
Westminster System  the parliamentary system of government Australia
adopted and adapted from England  this separation does not fully
exist. Certainly in Australia the three branches exist: legislature in
the form of parliaments; executive in the form of the ministers and the
government departments and agencies they are responsible for; and the
judiciary or the judges and courts. However, since the ministry (executive)
is drawn from and responsible to the parliament (legislature) there is
a great deal of interconnection in both personnel and actions. The separation
of the judiciary is more distinct.

ORIGINS
OF THE DOCTRINE

States throughout
history have developed concepts and methods of separation of power. In
England, parliament from its origins at least seven centuries ago was
central to an struggle for power between the original executive (the monarch)
and the councils of landowners, church leaders and commons. Similarly
judges, originally representing the executive, developed increasing independence.
Parliament was a significant force in an increasingly mixed form of government
by the time of the Tudors and soon afterwards was directly challenging
the doctrine of the divine right to power of the Stuart monarchs. The
English Civil War (1642-60) between parliament and monarchy resulted in
the monarchy continuing but under an arrangement which established not
only parliaments legislative authority but also opened the way to
the development of cabinet government.

In his Second Treatise
of Civil Government, English philosopher John Locke (1632-1704) noted
the temptations to corruption that exist where ... the same persons
who have the powers of making laws to have also in their hands the power
to execute them ... . Lockes views were part of a growing
English radical tradition, but it was French philosopher, Baron de Montesquieu
(1689-1755), who articulated the fundamentals of the separation doctrine
as a result of visiting England in 1729-31. In his The Spirit of Laws
(1748), Montesquieu considered that English liberty was preserved by its
institutional arrangements. He saw not only separations of power between
the three main branches of English government, but within them, such as
the decision-sharing power of judges with juries; or the separation of
the monarch and parliament within the legislative process.

Locke and Montesquieus
ideas found a practical expression in the American revolution in the 1780s.
Motivated by a desire to make impossible the abuses of power they saw
as emerging from the England of George III, the framers of the Constitution
of the United States adopted and expanded the separation of powers doctrine.
To help ensure the preservation of liberty, the three branches of government
were both separated and balanced. Each had separate personnel and there
were separate elections for executive and legislature. Each had specific
powers and some form of veto over the other. The power of one branch to
intervene in another through veto, ratification of appointments, impeachment,
judicial review of legislation by the Supreme Court (its ability to strike
down legislation or regulations deemed unconstitutional), and so forth,
strengthened the separation of powers concept, though inevitably involving
each branch in the affairs of another and to some extent actually giving
some of the powers of one branch to another.

It was a high water
mark in institutionalising individual liberty through the separation of
powers and one embedded even further by early judgments of the Supreme
Court but, as the struggles, inefficiencies and political gamesmanship
illustrated by the recent Clinton impeachment attempt or by Congresss
delaying of budgets, it also made government harder. This had been partly
the intention. Few subsequent democracies have fully adopted the American
approach, but the concept is widely aspired to, though taking varying
forms amidst the complex interplay of ideas, interests, institutions and
Realpolitik that are part of each system of government.

THE
DOCTRINE IN AUSTRALIA - THE COMMONWEALTH

While certainly not
the American model, a form of the doctrine operates in the Australian
versions of the Westminster model, most notably in the Federal Constitution.
The writers of the Australian Constitution in the 1890s retained the Westminster
cabinet system. Unlike the Americans of the 1780s, they had several working
democratic federal constitutional models to examine, along with well-established
democratic traditions of their own, and wanted to maintain strong ties
with Britain, not create a revolution. Their interest in the U.S. Constitution
was more in its mechanisms of federation such as the Senate, than in the
checks and balances between branches of government. Nevertheless some
elements can be found.

The Australian Constitution
begins with separate chapters each for the Parliament, Executive and Judiciary,
but this does not constitute a separation of powers in itself. Executive
power was nominally allocated to the Monarch, or her representative the
Governor-General (Section 61), while allocating it in practice to the
Ministry by requiring the Governor-General to act on the Governments
advice (subject, of course to the Governor-Generals controversial
reserve powers). This was the Westminster model and it relied
on convention as much as the words of the Constitution. However, the specific
requirement for Ministers of State to sit in Parliament (Section 64) clearly
established the connection between Executive and Parliament and effectively
prevented any American-style separate executive.

The situation with
the judiciary, however, was different. The whole of Chapter III of the
Constitution (Judicial Power of the Commonwealth) and Section 71 in particular,
has been used by the courts to establish a strict separation of powers
for Federal Courts from the ministry and parliament. In New South Wales
v. Commonwealth 1, the High Court
ruled that this part of the Constitution does embody the doctrine of separation
of judicial powers. This also applies to tribunals and commissions set
up by Federal Parliament which, unlike some of their equivalents in the
states, can only recommend consequences. The Federal Parliament itself,
however, has the rarely used privilege of being able to act as a court
in some circumstances, primarily where it may regard a nonmember as acting
in contempt of parliament.

However, the Courts
have found that the separation that exists for the judiciary does not
strictly apply to the relationship between executive and legislature 2. In Victorian Stevedoring and General Contracting
Co. v. Dignan 3, it was found that
legislative power may be delegated to the executive. The same case, however,
reconfirmed the separation of judicial powers. Thus, while the courts
are separate and the High Court can rule on legislative and constitutional
questions, the executive is not only physically part of the legislature,
but the legislature can also allocate it some of its powers, such as of
the making of regulations under an Act passed by Parliament. Similarly,
the legislature could restrict or over-rule some powers held by the executive
by passing new laws to that effect (though these could be subject to judicial
review).

The
Constitution does provide for one form of physical separation of executive
and legislature.

Section 44, concerning
the disqualifications applying to membership of Parliament, excludes from
Parliament government employees (who hold an office of profit under
the crown) along with people in certain contractual arrangements
with the Commonwealth. This was demonstrated in 1992 after Independent
MP, Phil Cleary, had won the Victorian seat of Wills. Cleary, on leave
without pay from the Victorian Education Department at the time of his
election, was held to be holding an office of profit under the Crown and
disqualified 4. The Court noted
that that Section 44s intention was to separate executive influence
from the legislature. This requirement does not apply to state elections.

Elections themselves,
in recent years, have reflected voter concern with separation of powers-related
issues. In 1995, NSW voters overwhelmingly endorsed a referendum proposal
clarifying the independence of judges. In the 1999 Victorian election,
voters appeared to reject a perceived concentration of power by the Premier,
particularly in his gagging of fellow party members and changes to the
role of the state Auditor General.

Even though the Australian
Constitution says little about political parties, parties have an important
impact on the relationship of powers between executive and legislature.
The existence of varied political parties is a feature of the freedoms
of opinion essential to a liberal democratic system and the contest between
them is a factor in controlling the potential excesses of any one group.
However, the system can have other effects. Since by convention the party
controlling the lower house forms the government, then the ministry (being
also the party leaders) also exerts authority over the lower house. The
exceptional strength of Australian party discipline ensures that, within
the house, every member of the numerically larger party will almost always
support the executive and its propositions on all issues. Despite debates
and the best efforts of the Opposition and Independents (particularly
in Question Time), this inevitably weakens the effective scrutiny of the
executive by the legislature.

Party domination in
Australia thus further reduces the separation between executive and legislature,
although Parliamentary processes do usually prevail. However, robust democratic
systems have a capacity to self-correct, as has been demonstrated by the
Senate. Because of the party system, the Senate failed to ever be the
states house originally intended by the Constitutional framers.
However, the adoption of a proportional system of voting in 1949 created
a new dynamic and the Senate in recent decades has rarely been controlled
by Governments. Minor parties have gained greater representation and Senate
majorities on votes come not from the discipline of a single party but
from a coalition of groups on a particular issue. This happens in most
democracies but in Australia is often regarded (particularly by supporters
of the major parties) as an unnatural aberration. As a result the role
of the Parliament as scrutineer of executive government, immobilised to
some extent in the Lower House by the party system, has been expanded
by the Upper House.

THE
DOCTRINE IN AUSTRALIA - THE STATES

In the case of the
Australian states, where the basic governmental structures were in place
before the Australian Constitution, separation of powers has little constitutional
existence even though it is generally practiced. This has been shown in
cases such as Clyne v. East 5 for
NSW and the doctrine extensively discussed in cases such as Kable v. The
Director of Public Prosecutions 6.
In these and other judgments it was noted that a general doctrine
of separation of powers operates as accepted practice in the state through
constitutional convention. That the position is similar in other states
has been confirmed in cases in Victoria 7,
Western Australia 8 and South Australia
9.

In practice, there
is far more crossing of responsibilities in the states than Federally.
As with the Commonwealth, Ministers have powers to make regulations (in
effect, legislating) and are, of course, Members of Parliament and responsible
to it. Again, the rigid party system increases the domination of at least
the lower house by the executive from the majority party and there are
often complaints that the executive is manipulating parliament or treating
it with contempt. In some cases upper houses have increased their roles
of scrutiny of the executive, though this varies according to the electoral
systems used for upper houses  where they exist.

Parliamentary scrutiny
of the executive and, in particular, by the NSW Upper House, was tested
in 1996-99 when Treasurer Michael Egan, on behalf of cabinet, refused
to table documents in the Legislative Council of which he is a member.
The documents related to several controversial issues, and the reasons
given for this refusal included commercial confidentiality, public interest
immunity, legal professional privilege and cabinet confidentiality. The
Council, determined to exercise its scrutiny of the executive, pressed
the issues and eventually adjudged the Treasurer in contempt, suspending
him from the house twice. The matters were disputed in three cases in
the High Court and the Supreme Court of NSW 10-12.
The results upheld that the Legislative Council did have the power to
order the production of documents by a member of the House, including
a minister, and could counter obstruction where it occurred. However,
the question of the extent of the power as regards cabinet documents,
will be subject to continued court interpretation.

In relation to the
judiciary, traditionally the most separated and independent arm, the separation
so clearly established in the Commonwealth does not exist in the state
constitutions. Nevertheless, certain state courts, having had jurisdiction
to deal with Federal laws conferred on them by the Commonwealth Parliament,
have in effect a Federal Constitutional basis for separation of their
powers. The general separation of state courts is practiced, but the issue
of tribunals set up by state parliaments is different since such bodies
sometimes exercise both executive and judicial power through being able
to impose fines or penalties. The Administrative Decisions Tribunal in
NSW is one such example.

In NSW, the issue
of judicial independence was recently raised in a rare Australian instance
of a legislature exercising scrutiny over a judge. The power of removal
of a judge in NSW lies with the Governor on Parliamentary recommendation,
the possible grounds being proved misbehaviour or incapacity. In 1998
the Judicial Commission recommended Parliament consider removal of a Supreme
Court Judge on the grounds of incapacity. In the Court of Appeal 13
the Judge, Justice Bruce, argued that this contradicted the concept of
the independence of the judiciary. The Supreme Court agreed that, despite
the lack of any formal separation of powers in the NSW Constitution, the
Commonwealth Constitution did significantly restrain Parliamentary interference
with the judiciary. Nevertheless, the court held that nothing had occurred
that would impinge on the integrity of the judicial system and that Parliament
could consider the case. Justice Bruce appeared before the Legislative
Council but removal was not recommended.

IN
CONCLUSION

While the doctrine
of the separation of powers and its practice will not necessarily be the
same thing, the purpose behind the doctrine can be seen to be embedded
in democracies. In the Westminster system, as practiced in Australia,
discussion of the doctrine is riddled with exceptions and variations.
Certainly, in its classical form it exists here only partially at best;
but in practice mechanisms for avoiding the over-concentration of power
exist in many ways  through constitutions and conventions; the bicameral
system; multiple political parties; elections; the media; courts and tribunals;
the federal system itself; and the active, ongoing participation of citizens.
The doctrine is part of a simultaneously robust and delicate constant
interplay between the arms of government. A tension between separation
and concentration of powers will always exist, and the greatest danger
will always lie with the executive arm  not judges or legislatures
 because in the executive lies the greatest potential and practice
for power and for its corruption. Preventing this in our system relies
as much upon conventions as constitutions and the alarm bells should ring
loudly when government leaders dismiss or profess ignorance of the concept.______________________________